An
advocate as other human beings, it may reach a time when he or she dies. And as
other human beings, after death, an advocate may have some contracts which need
his assistance even after his death especially contracts relating to his or her
professional practices. An advocate may die and leave a number of duties left
by him un-accomplished and when such situation happen it sometime cause a
number of problems if a deceased advocate died intestacy. Without direction of
a deceased advocate, especially on conducting activities that he or she used to
deal with during his lifetime, there is a huge chance for mis-understanding
between the parties surviving advocate’s life. Also problems may rise up due to
the death of an advocate concerning un-accomplished duties by an advocate to
the clients due to the type of a law firm that he used to work.
In
United Republic of Tanzania, the laws are not silent about administration of a deceased advocate practice, but at the same
time the laws do not provide enough provisions to cover all the circumstances
and problems that may happen when an advocate dies with duties un-accomplished
and died without even leaving a piece of paper stating how his or her duties left
should be implemented by the successors.
The
Advocates Act[1],
section 57 (1) of the Act on death
or incapacity of an advocate, the Act provide that;
“If,
after some business has been done under an agreement made pursuant to section
54 but before the advocate has wholly performed it, the advocate dies or become
incapacity of acting, then any party to, or a representative of any party to
the agreement may apply to High Court and the High Court shall have the same
jurisdiction as to the enforcing agreement so far as it has been performed or
setting it aside, as it would have had if the advocate had not died or become
incapable of acting.”
The
provision tries to cover some issues when an advocate dies with his or her
duties un-accomplished and when an advocate dies without giving direction on
how some activities he left should be handled by the successors. But the
section does not cover all situations which may arise due to the death of an
advocate and left his duties to the clients un-accomplished.
EFFECTS
OF AN ADVOCATE’S DEATH TO THE CLIENTS IN REGARDING A TYPE OF LAW FIRM OR FORM
OF PRACTICE OF AN ADVOCATE
In
Solo Law Firm, as known, a single
advocate carry all activities of the firm himself or herself. In this type of
law firm when happen an advocate dies, he or she dies with office and all
activities that is un-accomplished. Due to this situation, there will be no any
continuation of activities left by a deceased advocate. Many instances like
this has happened in many countries across the globe especially in USA where a
SOLO advocate dies and leave some his clients into prison and no any direction
was left with an advocate and that mark the end of business between clients and
an advocate.
Scenario,
a well-respected attorney dies in a motorcycle accident. The clerk of the court
or bar association sends letters to all clients the attorney was listed as
representing. But most of those clients are in prison, waiting for the attorney
to complete their appeals. Worse, the clients have drained their savings to pay
the attorney's retainer. With hearing and statute-of-limitations dates fast
approaching, the clients are unable to obtain new counsel without somehow
recovering the unused retainer needed to pay the new counsel[2].
But
some advocates (solo advocates), due to this problem which has existed for a
number of years, they tried to put things in writings so as to prevent problems
when happen they die before finalizing their duties to their clients. Most of
them put directions on their livings
will on how they want their duties to be conducted by their successors
after their death.
In
Small Law firm, most of these law
firms tend to have two to ten advocates or lawyers, they also allowed to
collaborate with other law firms in exercising their duties. Most of these law
firms exercise its duties as a company and the clients are recognized as
clients of the company and not the clients of a single advocate of a company.
The
clients of small law firm are the clients of the company and not clients of a
single advocate. Due to this, when happen an advocate dies, his or her duties
may be given to another advocate within a law firm and there will be no
problems when happen an advocate dies and left his or her duties
un-accomplished.
The
Large Law Firm as the small law
firms is composed of a number of advocates, lawyers and other employees of the
firm who are not lawyers of the company or advocates. And they deal with a
number of issues and their system of running a firm is a same as running a
company, the death of an employee do not mark the end of the activities of the
company because if a an advocate dies, the duties imposed on him will be given
to another advocate of a company[3].
IMPORTANCE
OF LEAVING WILL BY AN ADVOCATE, CONCERNING DUTIES THAT HE/SHE MAY DIE AND LEFT
IT UN-ACCOMPLISHED.
An
advocate who work as a solo advocate, to make an environment clean after
his/her death, he must make sure to leave a will which direct how his or her duties and activities should be
handled by the successors after his or her death. By doing this, it will reduce
claims and blames of clients whose their activities failed due to the death of
an advocate. A will that needed here is about the legal practice that left
un-accomplished by an advocate and not about his personal properties. It is
advised by many associations (General
Practice, Solo & Small Firm Division Best of ABA Sections) that, the
solo law firm owners must leave a will which explain how activities of a firm
may be conducted after his or her death.
There
is no problem to the small and large law firm because such firms operate as
companies and the death of an employee do not mark the end of a company. Most
of large law firm, they put all their things in MEMARTS so as to cover all
situations and control of the company.
Leaving
a will concerning implementation of legal activities and duties of a deceased
advocate to the clients is useful in solving some problems which may happen
after the death of an advocate. In USA, there is a number of rules established
to cover this situation but some advocate still fall under this situation. In
United Republic of Tanzania, the will is needed because the Advocates Act[4] does
not provide each and everything on the administration of a deceased advocate’s
practice.
BIBLIOGRAPHY
BOOKS
Berson, S. A. (2013, Janaury 1). Death of a Practice: After
Lawyer Dies, Her Friend is Faced with Closing Down Her Firm.
Byerley,
T. K. (1999, October). Protecting the Client When a Lawyer Dies or Becomes
Disabled. Michigan.
Cooperman, S. N. (1998, Spring). What Happens When a Lawyer
Dies? General Practice, Solo & Small Firm Division of the ABA.
Troyer,
T. M. (2002, February).Picking up the Pieces after the Death or Disability of a
Lawyer. Massachusetts: Massachusetts Bar Association.
ONLINE
SOURCES
https://hirealawyer.findlaw.com/choosing-the-right-lawyer/types-of-law-firms.html
https://www.tzaffairs.org/1984/01/the-legal-profession-in-tanzania/
http://www.abajournal.com/magazine/article/death_of_a_practice_terminally_ill_lawyers_friendfaces_closing_down_firm/
STATUTES
The
Advocates Act, Cap 341 R:E 2002
[2] http://www.abajournal.com/magazine/article/death_of_a_practice_terminally_ill_lawyers_friend_faces_closing_down_firm/
[3] https://hirealawyer.findlaw.com/choosing-the-right-lawyer/types-of-law-firms.html
[4] ibid
0 Comments
PLACE YOUR COMMENT HERE
WARNING: DO NOT USE ABUSIVE LANGUAGE BECAUSE IT IS AGAINST THE LAW.
THE COMMENTS OF OUR READERS IS NOT OUR RESPONSIBILITY.